Federal Court of Australia

Archer v Minister for Immigration and Citizenship [2026] FCAFC 20

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant came to Australia from England in 1965. She was five years old and has lived here ever since. In March 2018, she was convicted of an offence of assisting one of her sons (N) conceal the fact that he had murdered his partner by strangulation. She was sentenced to imprisonment for 6 years and 6 months. In May 2018, her visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). She exercised her statutory right to seek to have that cancellation revoked, but revocation was refused by a delegate of the Minister. She sought merits review of that non-revocation decision in the Administrative Appeals Tribunal.

2    On 22 February 2023, the Tribunal set aside the delegate’s non-revocation decision.

3    Over a year later, on 30 May 2024, the Minister exercised the discretionary power under s 501BA(2) of the Migration Act to set aside the Tribunal’s decision and cancel the appellant’s visa. The appellant failed in judicial review proceedings of the Minister’s decision before a judge of this Court: Archer v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 471. Two of the three unsuccessful grounds of review are maintained in this appeal from the primary judge’s orders.

4    The first ground of review depended upon the proposition that the power under s 501BA(2) to set aside the Tribunal’s decision is subject to an implied limitation that it be exercised within a reasonable period of time after that decision. The appellant contended that it was not exercised within such a period of time. The primary judge assumed in favour of the appellant that such an implication was required to be drawn, but found that it had not been breached because the time taken was not unreasonable. The appeal from that conclusion depended upon that favourable assumption being correctly made. However, that assumption was not correctly made, as has now been unanimously decided by the Full Court in Minister for Immigration and Multicultural Affairs v XMBQ [2026] FCAFC 19, heard concurrently with this appeal. It follows that the first ground of appeal must fail.

5    In relation to the third ground of review, the substance of which is maintained as the second ground of appeal, the appellant unsuccessfully challenged the aspect of the Minister’s decision that gave weight, in the assessment of the national interest, to the risk that she posed to the Australian community.

6    Section 501BA(2)(b) provides the Minister a discretionary power to set aside a revocation decision under s 501CA(4) and cancel a person’s visa if “satisfied that the cancellation is in the national interest”. The concept of the “national interest” is broad and evaluative and what is in the national interest is “largely a political question”: Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [40]; Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57]; ENT19 v Minister for Home Affairs [2023] HCA 18; 278 CLR 75 at [11] and [92]; see also Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [156] to [157]. The Minister must be satisfied that it is in the national interest to cancel the visa, attaining that satisfaction reasonably: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 288 FCR 565 at [140]; Luong v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 6 at [37].

7    The central reasoning on which the second ground of appeal rested was part of the Minister’s analysis of whether it was in the national interest for the appellant’s visa to be cancelled. It addressed the issue of (present and future) risk to the Australian community, and was as follows:

[65]    I accept Mrs ARCHER’s offending occurred in unique circumstances. I have considered the view of the AAT that it is highly unlikely that she would find herself in similar circumstances, and I broadly concur. While I find it highly unlikely she would ever again find herself in the situation that one of her sons would murder another person, I consider it is possible that a close family member could become involved in some other form of criminal or negative activity that might arouse her protective instincts.

…

[69]    I have found that the nature of Mrs ARCHER’s conduct is very serious. I have further found that actions taken with the intention of covering up another person’s very serious offending have the potential to cause physical and/or psychological injury to members of the Australian community, as well as impacting the ability of law enforcement and courts to ensure community safety through the carriage of justice. On balance, I consider there to be a low likelihood that Mrs ARCHER will reoffend. Nevertheless, I considered that, should any of Mrs ARCHER’s family members engage in criminal conduct again, it is possible that she could again engage in efforts to conceal such conduct, notwithstanding its illegality. Should Mrs ARCHER engage in comparable conduct again it may result in great physical and/or psychological harm to members of the community. I have given this weight towards a finding that it is in the national interest to cancel Mrs ARCHER’s visa.

8    The appellant’s case centred on the Minister’s statement in the last sentence of [65] that “it is possible that a close family member could become involved in some other form of criminal or negative activity”. That first step in reasoning was adopted in [69] as a basis for assessing the risk that Mrs Archer might again engage in efforts to conceal such conduct, which – if she did – would result in harm to the Australian community.

9    The appellant contended that there was no evidence or other basis to conclude that another relative had engaged in criminal conduct (or would engage in such conduct in the future), and observed that her adult son, N, was imprisoned for life, with a non-parole period of 22 years. It followed, according to the appellant, that the Minister’s conclusion was mere speculation and the state of satisfaction he reached was unreasonable, because it involved irrational or illogical reasoning.

10    A little further factual background is instructive.

11    The material before the Minister included the sentencing judge’s remarks. It is clear from the Minister’s reasons that these were carefully considered in drafting those reasons. The sentencing judge’s remarks reveal the following course of events.

12    The appellant’s son, N, murdered his partner in the evening of 26 August 2015. She became aware that night that N had murdered his partner. The next morning, on 27 August 2015, she and N drove to a bank. She withdrew $250 from the ATM using the dead partner’s debit card in order to purchase, from a hardware store in Mannum, four bags of cement and a wheelbarrow to mix the cement. That afternoon, they purchased 10 more bags of cement. That cement was used by N to concrete over the floor of the garden shed at the appellant’s home, where he had buried his partner’s body.

13    On 28 August 2015, the appellant purchased a mobile telephone charge voucher in order to operate the dead partner’s mobile phone, which was in N’s possession. Two attempts to send a message from that mobile phone had earlier failed because it was out of credit. After purchasing the phone credit, a text message was sent to the partner’s mother’s mobile phone to create the impression the dead partner was alive, well, and safe. In fact, the appellant knew N had murdered his partner and had buried her inside the garden shed at the appellant’s home.

14    On 29 August 2015, the appellant purchased 10 more bags of cement, this time from Bunnings in Murray Bridge, to complete the concreting of the shed housing the dead body.

15    On 4 September 2015, when police officers attended the appellant’s home to speak with N, the appellant told them that she had received a text message suggesting that N’s partner may be somewhere in Victoria. She did this to deflect the police away from her family.

16    On 7 September 2015, the appellant provided a statement to one of the detectives involved in the investigation in which she corroborated the lies which N had been giving to the police.

17    On 11 September 2015, the appellant involved two of her other adult children (daughter H and son A) in assisting her to cover up her son’s murder. She gave H $50 and asked her to purchase four bags of cement from Bunnings. The appellant instructed H to take those bags of cement to A’s home, to burn the receipt she received for the purchase of the cement and to dispose of the clothing she was wearing at the time of purchase.

18    The appellant then telephoned the detective in charge of investigating the disappearance of N’s dead partner and told him that her son, A, had taken four bags of cement from her home on 2 September 2015. The appellant then convinced A to lie to police about those bags of cement, which he did.

19    The involvement of H and A was necessary because, on 10 September 2015, during a search of the appellant’s home, the police had located a receipt for the purchase of the 10 bags of cement on 29 August 2015. Four bags of cement were found by the police under the clothesline in the appellant’s backyard and she wanted to account for what she had mistakenly believed was the purchase of eight bags of cement by her. She did not want the police to suspect that the floor of the garden shed, under which the body was buried, had recently been concreted.

20    With that background, we turn to the Minister’s first step in reasoning: that it was “possible that a close family member could become involved in some other form of criminal or negative activity”. The appellant characterises this step as speculative. The appellant emphasised that the High Court has warned against findings that rest on speculation untethered from the material: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574–5.

21    In our view, the appellant’s characterisation of the Minister’s conclusion as speculative implies a requirement for a degree of evidentiary support and particularity that the authorities do not require of evaluative, protective executive decisions.

22    We do not accept that there was no support for the Minister’s starting point for the assessment of future risk. The appellant had procured two of her other adult children to engage in conduct of a nature sufficient to support the Minister raising the possibility, as a premise for the assessment of risk, that another close family member might engage in criminal or negative conduct. In the context of a murder investigation, H had (it seems) purchased bags of cement and burned the receipt and the clothes she had been wearing at the time of purchase. A also lied to police in the way the appellant had instructed. In addressing a sequence of past events, a decision-maker is entitled to bring common-sense and experience to bear in hypothesising what possibilities the future may hold in that context, and is not obliged either to find facts according to the strict evidentiary requirements of a criminal court or to be naïve.

23    Further, it is important to emphasise that the Minister was not, in terms, making a predictive finding that any family member was likely to offend. The Minister was instead identifying a conditional contingency as a premise for the assessment of risk: if a close family member were to become involved in wrongdoing of a kind that might again engage the appellant’s protective instincts, then the appellant’s past conduct disclosed a capacity to respond unlawfully. Read fairly, the Minister’s reasons do not attribute criminal propensity to unnamed relatives. Rather, the Minister declined to treat the risk of such a triggering event as zero, articulated expressly in the language of bare possibility rather than prediction. The consequences of that risk being realised was then evaluated.

24    The High Court has made it clear that not every arguable logical weakness amounts to jurisdictional error – the question is whether the impugned step leads to a conclusion at which no rational or logical decision-maker could arrive on the same material: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130] to [131], [135].

25    The principal focus of the Minister’s assessment of risk was on the appellant, not her relatives. The historical fact from which the Minister reasoned was the appellant’s demonstrated willingness, for reasons of family protection, to participate in serious criminal conduct notwithstanding its illegality and potential harm. From that historical fact, it was open to the Minister to form the evaluative view, for the purposes of the exercise of the discretion, that, although repetition of the same factual scenario (involving a murder) was highly unlikely, there remained a residual possibility that the appellant’s protective instincts could be tested again by some future wrongdoing by a close family member. That was not impermissible conjecture. It was reasonable conjecture within the parameters set by the historical facts: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [38].

26    It is also important to emphasise the qualitative, not predictive, nature of the Minister’s concern. The Minister was entitled to place weight on the consequences that could ensue if the appellant were to reoffend, even while recognising the low probability of such an event. In substance, the Minister decided that even a slim chance of grave harm to the community was a relevant consideration in the national interest calculus. That approach was not erroneous. Decision-makers are permitted to take into account precautionary considerations in the face of low-probability high-impact risks, provided their decisions are rationally grounded. The precautionary principle dealing with managing risks is well-established in curial settings and has no lesser application in appropriate cases in an executive decision-making setting: see M v M (1988) 166 CLR 69.

27    The Minister’s statement at [65] that “it is possible that a close family member could become involved in some other form of criminal or negative activity that might arouse her protective instincts” is not properly understood as a finding of fact requiring strict proof. Rather, on the material before him, the Minister could not exclude, as a matter of human affairs and experience, that a close family member might in future become involved in wrongdoing such that the appellant’s protective instincts might again be engaged. This kind of reasoning is permissible – see: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [39].

28    Whilst not everyone might agree with the Minister’s reasoning and conclusion, it had an “evident and intelligible justification”: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76]. The Minister’s hypothesising of a possible future contingency as a premise for the assessment of risk was open to him on the material before him and is not appropriately described as “arbitrary” or “capricious” or “illogical” – see: SZMDS at [130] to [135]. The Minister’s reasoning falls within the latitude accorded to executive decision-makers in exercising discretionary powers on public interest grounds: Li at [63] to [66]; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36–7. The approach cannot be said to be “logically absurd” or outside the bounds of reasonableness – cf: Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595 at [66] to [70].

29    As both grounds of appeal have failed, the appeal must be dismissed with costs.

Associate:

Dated:    9 March 2026